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26.05.2021

EVALUATION OF EMPLOYEE'S RIGHT TO GO OFFLINE UNDER THE LABOR LAW

With the Covid-19 pandemic that has the world under its effect, online working ways have been internalized in many business areas and an urgent adjustment has been made in business contracts against the negative effects of the pandemic. Due to the direct transition to this adjustment with the effect of the global epidemic, the legal foundation period could not be practiced, and the interpretation was made in line with the verdicts of the current Labor Law. Hence, the purposes and boundaries of the rules and methods to be applied could not be clearly set. 
 
In this period, the stance of those who work from home through remote work was considered as equal to those of working at the office, and the same rights and obligations continued to be valid without leading to any loss of rights. But, there seems to be certain issues occurring due to working remotely. One of these would be, even though the working hours are drawn clearly, flexing of the limit of this clarity by the employer. In fact, with working from home, the entire work is done on computer, etc. technological devices, and all systems and equipment related to the work exist in the home environment. Hence, the fact that all the equipment required for the work is with the employee 7-24 has paved a way for the employer to make certain requests outside of working hours. Because the employee's behavior in the form of not fulfilling the requirements of the email or delaying the email, when the employer forwards a mail out of working hours, may cause results against the employee; he gets to do that job online, even outside of working hours. These conditions left the employees with phone calls, meetings, WhatsApp messages and video calls till late hours. Also, work-life balance was spoiled due to the prolongation of working hours with working remotely, and it was seen that the mental health of the employees was affected as well. Moreover, despite the prolongation, spreading and stretching of the working hours, the wage corresponding to this work was not paid under the title of overtime or any other title. 
 
Within this scope, the limits of working time in remote work and the adequacy of the Labor Law verdicts regarding the “Right to be Offline” for employees, which are frequently discussed in the international public, and how to update them if it is not sufficient are the subjects of our article. The thing of it is;
 
The concept of remote work has gained its legal definition by adding "Labor Law and the Law on Amendment of the Turkish Employment Agency Law" dated 06.05.2016 as the types of Labor Contract to the Labor Law. In the additional article 14, remote working is identified as a written business relationship based on the principle of fulfilling the work of the worker at home or outside the office with technological communication tools within the context of the work organization created by the employer. In cases that fall under the context of this definition, it is conditioned to update the employment contract and to include the description of the work, the way it is performed, its duration, place, fee, the equipment to be provided by the employer and their protection, the employer's contact with the worker and its duration and general and special working conditions. It has been conditioned that measures related to occupational health and safety and other rights and obligations should be applied equally when working remotely.
 
The overall verdicts of remote work are regulated this way in the Law; For the methods and principles, reference has been made to the regulation to be issued by the Ministry of Labor and Social Security. This regulation was published on 10.03.2021 and was put into force. Nevertheless, there is no more detailed and comprehensive regulation in the remote work regulation than stated in the law on methods and principles. Hence, the verdicts of the legislation that we will consider when evaluating the "Right to be Offline" when working remotely are the Overall Verdicts of the Labor Law, the 14th Article on Remote Work and the Remote Work Regulation dated 10.03.2021.
 
Looking at those Overall Verdicts;
In Article 63 of the Labor Law, it is stated that "Working hours are at most 45 hours a week in general conditions" and employment contracts are clearly limited within the context of these periods.
 
In terms of work exceeding these working hours, a different procedure and remuneration will be made, and article 41 regarding overtime stipulates that the wage to be paid in case of overtime will be determined as 50% more than the hourly wage of the normal wage. The condition of the worker's approval was also sought in order to work with the same article for extra hours.
 
 
 
As seen in the Labor Law, due to the protectivity of the labor law, the maximum working periods, minimum rest periods and the boundaries between these are clearly drawn. The "Right to be Online", that is, the employer's right to close in case of possible extra job requests during rest hours is actually a requirement of the verdicts of the aforementioned Labor Law. Considering the purpose in its wording and requirement, the relevant verdicts; protects the worker against overtime work outside the working hours set by the employment contract; While working from home, it recognizes being "offline" in response to requests from employers out of hours. In fact, the dimension of overwork in remote working which is regulated in the law; it shifts to being "online" outside of work. For this reason, just as the employer has to obtain the consent of the employee for overtime work within the scope of Article 41 of the Labor Law, the employee should obtain his / her approval while requesting the employee to be online outside of working hours. Furthermore, the 9th article of the remote work regulation dated 10.03.2021 requires the written request of the employer and the consent of the worker in order to perform overtime work.
 
For that reason, it is clearly seen that the employee’s consent is required in terms of the entire legal system when it comes to the employee being accessible during the rest hour. Despite this, the boundary between the working time and the rest period of the home worker is not clearly drawn.
 
But, according to Article 3 of the Working Hours Regulation, daily rest time is 12 hours and is uninterrupted. Here, uninterrupted means "undivided by employer and job, unconnected with employer and job, unconnected, net rest". Therefore, as a job, a meeting, an email, a call to be assigned by the employer during the resting time while working from home, the employer has infringed the rest periods assigned to the employee.
 
Under the context of the explanations, remote workers have the “right to be offline” - “the right to cut off contact” - “not to be accessible” in the resting hours without requiring a new regulation pursuant to our Labor Law legislation. According to us, despite the need and hecticity, in case the Remote Work regulation remains so superficial, another article can be added to the regulation on this matter. In fact, since the methods and principles are left to the regulation with article 14 of the Labor Law, there will be no extortion of function. Based on Article 10 from the Regulation, it is designated that the way of communication and the time slot within the working hours will be set by the employer and the remote worker. By adding the following verdict as a continuation of the previous article; "Companies with at least 10 employees are required to prepare an implementation by-law that identifies how to disconnect the employer and employees stating when email and phone calls should not be made or not answered, and they should educate their employees about these strategies and inform them on paper."; it can be shown to employers that they should set down their practices through this direction. That way, the times would be clearly defined and protected by the employer in order to separate work and personal life.
 
In the contrary case, considering the fact of unemployment due to the pandemic, an employee who works from home will not accept the invitation of an online meeting outside of working hours or pass over his mail; these rights can only be achieved in real terms if companies, institutions and individuals that have the title of employer adopt that employees should be “offline” during a net 12-hour rest period in accordance with the relative verdicts of the law and regulations. Some solid implementations to be practiced regarding this matter in several companies would also get other companies to take action. In fact, if we look at the overall world, different practices have been developed in many countries since the pandemic, considering the psychology of the employees and the efficiency to be obtained. In this context, Volkswagen in Germany, as the first company to stop email flow outside of working hours in 2012, has set its servers so that it cannot send emails outside of working hours, or adding a function that includes a 3-stage confirmation tab when sending emails outside of working hours and also Axa Insurance Company's employees with the right to hang up the phone outside of working hours with collective agreement can be seen as encouraging examples.